Message of Gov. J. S. Hogg to the twenty-third Legislature of Texas. Page: 15 of 28
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MESSAGE OF THE GOVERNOR.
their bonds. They made no charge, however, that a default of interest had
occurred, nor that they had no adequate remedy at law to protect their interests,
so as to give them a right of action. After a long, preliminary investigation,
the court granted a temporary injunction, sulstantially holding that
the rates are too low, and that the whole law is unconstitutional. The
issue of fact now to be settled in the federal court affects the question as to
whether the whole schedule of rates fixed by the Commission is reasonable.
The efficacy of sections five and six, which prohibit tlils question from being
raised in answer to any action brought by a citizen to recover penalties from a
railway company for overcharging in a single item, cannot be more clearly demonstrated
than by this prolonged, expensive litigation now pending on that subject.
In such action for an overcharge, the case must ordinarily depend on
proof of violation of an independent Commission rate by the railway company;
and if the plaintiff succeeds, he can recover a penalty of not less than
$125. and not more than $500. Should the company in such action liave
the privilege, after it has been afforded a full hearing and judgment on the
reasonableness of the rate before the Conmmission, to enter a county court
and deny that the freight rate sought. to be enforced is reasonable to it, involving,
as it must, the whole schedule of rates under which the -railway operates,
the company would enjoy more than the equal protection of the law by
the denial of that right in such cases to the citizen.
No citizen is equipped for such a contest. The issue of what is a ieasonable
rate involves the whole schedule of rates governing transportation. Its
settlement cannot be fair except after a full investigation into the annual receipts
and expenditures of the railway company, and into its effect upon
public interests in general The rate question, after all, is a public question.
Private rights are subordinate to public interests in its regulation. Th'e (Commission
is a tribunal created by authoiity of the constitution to act for thle
public, incltuding the railways, after due notice and a full, fair hearing to the
interested companies, to settle all such questions to relieve the carriers and
shippers from injustice. To permit the railways or others to attack tlis solemn
decision, w!len made, in a collateral way in anv court, is but to overthrow
an established rule of law dating back far beyon(d the life of thlis government.
No private party or citizen has ever been accorded that privilege
through any court of equity or law; and it remains for a federal judge to (do
so by extending that right for the first time in the hIistory of this government
to any one; and of course, that "person" is a corporation-the pioneer in
marking the way for the destruction of the rights of the people through a
tribunal hy which they have always been expected to be sacredlv nmaintained.
A simple rule of evidence, in no way contiolling the powers of the Commission.
was sufficient on which this judge, at the instance of creditors who complained
of no injury from it and whose rights were not abridged by it, chose
to place his extraordinary opinion against the constitutionality of the whole
law. This is perhaps the first time in the history of the great American jurisprudence
ttiat a law has been held unconstitutional on such a slight pretext
or strained construction. A sense of propriety bv the Executive of the State
would lead to a more moderate expression than this were it not for the fact
that the judge, in discussing the issues before him as shown by lis recorded
opinion, did not confine himself to a judicial review of the questions involved;
but for some reason entered the domain of politics in an intemperate and undignified
manner. His unwarranted derision of the law itself and of the procedure
in the State courts, together with his contemptuous reference to State
elections and politics certainly expose him to such criticism as may be appropriate
under the most indifferent conditions. This breach of ethics and pro
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Hogg, J.S. (James S.). Message of Gov. J. S. Hogg to the twenty-third Legislature of Texas., book, January 12, 1893; Austin, Texas. (texashistory.unt.edu/ark:/67531/metapth5861/m1/15/: accessed February 16, 2019), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .